Guardaley | X-Art
Judge severs Does from a case; troll Nicoletti says: “F’you, judge” and adds them back
The case in question was filed on 6/14/2012 — a typical porn copyright shakedown case: Nicoletti moved to subpoena four ISPs to obtain the subscriber information of alleged file-sharers of a pornographic film “Busty construction girls.”¹ Unlike some other states that do not welcome trolls anymore, Michigan is currently a volatile battleground: judges there still rule inconsistently. The judge on this case, Arthur J. Tarnow, was among those who seemingly understood the predatory nature of lawsuits like this one. So, he put the brakes on the scam, issuing a harsh order on 8/28/2012. In particular, he ordered (emphasis is mine):
(1) Plaintiff may serve a subpoena pursuant to Rule 45 of the Federal Rules of Civil Procedure on John Doe #1, IP Address 97.69.173.120, through his or her ISP, Bright House Networks, to obtain the name, address, and Media Access Control address for John Doe #1. Plaintiff is not permitted to seek or obtain the telephone numbers or email addresses of John Doe #1, or to seek or obtain information about any potential John Doe defendant other than John Doe #1. Plaintiff’s counsel is directed to attach a copy of this Order to the subpoena.
[…]
(4) Absent any motion to quash or objection, the ISP shall produce the information sought to the Court, not the Plaintiff, ex parte and under seal. Said information will be provided to counsel for Plaintiff at a status conference to be scheduled by the Court.
(5) Plaintiff may only use the information disclosed pursuant to the subpoenas for the purpose of protecting and enforcing Plaintiff’s rights as set forth in the Complaint.
Not a slightest trace of ambiguity: the judge ordered to subpoena the ISP for a single IP address and proceed with naming the defendant.
So, our crook indeed proceeded with the subpoena and obtained the name of John Doe #1 on 10/26/2012: Bright House, accustomed to delivering information directly to trolls, messed up and sent the info to Nicoletti instead of the court chambers. Prior to that, on 10/12/2012, at the day when the time to serve, permitted by the Rule 4(m), elapsed, Nicoletti applied for an extension (until 11/12/2012). I do not see in the docket any order pursuant this request. Nicoletti finally filed the amended complaint on 12/26/2012 (two months after receiving the name from the ISP), and that complaint showed the defendant’s name. It is not clear how the troll got this name: he claimed that he deleted the email that he received from the ISP, and there is no indication of the status conference, during which defendant’s name and address were supposed to be handed over to Nicoletti.
When glancing over the amended complaint, I experienced a sudden strike of déjà vu: next to the defendant’s name we see “and John Does 2-21.” The judge unambiguously severed the other Does, and I do not see any order reversing this decision. Am I blind? Moreover, the amended complaint is exactly the same as the original: the only difference is the defendant’s name, which caused a change in two paragraphs of the text. Compare yourself:
- Original complaint (6/14/2012); list of IP addresses.
- Amended complaint (12/26/2012); list of IP addresses.
Theoretically it is possible that the record of a conference is missing, and during that conference the judge changed his mind, but I really doubt this: a decision like this must be documented. Knowing that the crooks (especially Nicoletti) are both sloppy and impudent, I can thing of the following explanation: seeing the lack of the judge’s attention to the case, as well as the apparent absence of a defendant’s reaction (as the defendant was notified by ISP, he could move to quash the subpoena, pro se or with the help from an attorney), Paul Nicoletti decided to smuggle the initial list in a hope that the judge won’t notice.
If this is the case, then I repeat one more time: troll Nicoletti insulted the judge and attempted to rape the court system. If Judge Tarnow does not admonish the troll (and refer him to the Michigan Bar for investigation), we should expect even more shameless assaults.
Also, I think that Judge Baylson, who presides over the headline-grabbing bellwether trial (same trolls and plaintiffs) in Pennsylvania, must be notified about this event, as I do not believe that Nicoletti acted on his own accord: the Mafioso clan’s “godfather” Keith Lipscomb, if was not the initiator of this particular swindle, at least was certainly informed.
Clarification
These 20 IP addresses are just an appendix to the amended complaint, this is not a motion for a renewed discovery, so one can say that it is not a big deal, and that these addresses were attached for illustration purposes only. Not so simple. Firstly, I never saw this type of “complaint amendment” before: in other cases, if every Doe except for #1 was severed, all the amended complaints I saw would list just this one defendant. So it is an insult and “f’you” to the judge. Secondly, it may be a “camel’s nose in the tent,” and the crook is testing the limits and indeed intends to move for a new discovery. In any case, this is the first time I see this kind of crookery, and wanted to bring some light to it. There is no limit to how low these guys can stoop.
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Doecumb wrote on on 2013/01/11 at 1:09 am:
Kudos to innocentbystander in the state discussions for bringing this to our attention.
Big thanks to Raul for the account.
I do think, even without asking for further discovery, that is a major dirty trick. The amended complaint still wants to re-join the defendants and “find them jointly and severally liable for the direct infringement of each other Defendant.”
And it will not look good to a Doe that RFCExpress says they have been added back to the complaint. Let’s also remember that one extra panicky Doe who settles can be several thousand dollars into the troll pockets. That’s plenty to help with expenses even of a failed amended complaint.
It’s easy to imagine the Nicoletti/Lipscomb gang taking this kind of ruling to the other Does, and ramping up their threats. Troll might say in their demand “SEE, the Judge already found you GUILTY. You, Ms. Doe, would have no chance of winning in court.” Further, through Brighthouse’s unwise delivery of information to the trolls, they have Doe contact info already. Even if they are admonished by the not to use this information, trolls can claim they discovered addresses through other means.
Anyway, the Nicoletti/Lipscomb troll gang would gain extra ammunition for their demands, while having a precedent for joinder being re-considered by a court.
Finally, it should be noted that it is no accident that a sneaky underhanded filing was slipped in during a Holiday week, Regular staff equipped to quickly recognize a sneaky maneuver might be away. History has shown that beneficial timing for troll legal actions is not an innocent coincidence.
Update
1/11/13
Wow. I knew that the trolls read my blog first time in the morning, but did not expect one particular scumbag, Paul Nicoletti, to react so quickly. Look at this motion, filed in less than 24 hours after this post was published:
Amended complaint filed in accident? Sure!
¹ By the way, while the copyright is issued in Patrick Collins’ name, the list of IP addresses states that this copyright belongs to Malibu Media. This is not surprising: such mistakes are inevitable if the same handful of attorneys file hundreds of cases. If it is hard to manage these cases during the filing phase, it is simply impossible to properly litigate them… if they were ever intended to be litigated. Of course, they were not: the sole goal of cases like this is to obtain subscriber addresses and phone numbers for the subsequent acts of extortion.
Fight © Trolls 
Thank you for raising awareness of this blatant overreaching.
Kudos to innocentbystander in the state discussions for bringing this to our attention.
Big thanks to Raul for the account.
I do think, even without asking for further discovery, that is a MAJOR dirty trick. The amended complaint still wants to re-join the defendants and “find them jointly and severally liable for the direct infringement of each other Defendant.”
And it will not look good to a Doe that RFC says they have been added back to the complaint. Let’s also remember that one extra panicky Doe who settles can be several thousand dollars into the troll pockets. That’s plenty to help with expenses even of a failed amended complaint.
http://www.rfcexpress.com/lawsuits/copyright-lawsuits/michigan-eastern-district-court/97958/patrick-collins-inc-v-john-does-1-21/summary/
It’s easy to imagine the Nicoletti/Lipscomb gang taking this kind of ruling to the other Does, and ramping up their threats. Troll might say in their demand “SEE, the Judge already found you GUILTY. You, Ms. Doe, would have no chance of winning in court.” Further, through Brighthouse’s unwise delivery of information to the trolls, they have Doe contact info already. Even if they are admonished by the not to use this information, trolls can claim they discovered addresses through other means.
Anyway, the Nicoletti/Lipscomb troll gang would gain extra ammunition for their demands, while having a precedent for joinder being re-considered by a court.
Finally, it should be noted that it is NO ACCIDENT that a sneaky underhanded filing was SLIPPED IN during a Holiday week, Regular staff equiped to quickly recognize a sneaky maneuver might be away. History has shown that beneficial timing for troll legal actions is not an innocent coincidence.
Is it me, or do these “accidental filings” (e.g. paralegal made an error, office flooded, JS was all liquored up on hooch and partying with pornstars…) always seem to happen at night, over the weekend or around a holiday when there are fewer resources to catch the “errors”?
Another day another troll playing with the system. Sooner or later they are going to get burned!
Summons was issued 12/27/2012 for a Richard Dziklinski. There’s only a couple of people with this last name in the United States. A quick Google brings up quite a bit of info that I won’t post here, but suffice it to say he is a rather well educated guy in a very responsible position. If there was a way of reaching out to him, he’d at least have a head start to getting legal counsel.
From what I can see, this is the kind of person who has an otherwise stellar internet presence. So, along comes troll pig Nicoletti, attempting to destroy him. Another sickening lawsuit against an innocent decent person. I could be wrong, but some of the Google hits implied he might be as much as 80 years old. I found at least one instance where he has won some kind of an award in the past.
Good going, Paul. Now you are targeting valued contributors to society. Your defendant, who you can never prove did anything wrong, is the kind of person others should look up to with admiration, and not try to tear them down. But then, you need to make money, you troll pig. You make it off of the backs of innocent people.
SJD, if you know of anyone who wants to reach out to Dziklinski, let me know.
I don’t think you are correct about the age. The linkedin profile suggests that he is a young man (finished a university in 2011). As for the contrasting the leech and fraudster with a decent (probably innocent), contributing member of the society, 100% agree.
On the second glance, it’s a ph. d. program (lasted 14 years, not unheard of), so it can be any age.
His company…
So this guy contributes to the safety of a criminal named Nicoletti, while the douchebag is driving to a courthouse to file another frivolous extortion lawsuit.
Troll probably did the same, googled him, seen his bio and education level on linkedin and then $$$. I hope this guy does not settle.
I don’t know the area of the house, big it does look nice. I bet the Troll thought this guy has money are will settle.
DTD 🙂
OK, finally had a chance to read the complaints and order and it is very strange. The order was very clear that “…Defendants John Doe 2-21 are SEVERED and Plaintiff’s claims against said Defendants are DISMISSED WITHOUT PREJUDICE to Plaintiff re-filing, individually…” Plaintiff could refile single cases against Does 2-21, but not refile the same complaint with some minor changes.
It does appear they may be testing the water to their own detriment. It would be funny if the judge re-severed Does 2-21, by issuing a new order. That would be the second dismissal for Does 2-21 and thus would be consider adjudicated on its merits – Does 2-21 could not be sued for this matter again.
What I find really stupid on the part of the Troll is they added Does 2-21 to the case – still stating they are “jointly and severally liable,” for this incident of copyright infringement. If Doe #1 defaults or settles, the Troll is essentially done with Does #2-21. If there is a default judgment against Doe #1, it is Doe #1’s responsibility to go after Does #2-21, not Plaintiff. Now if Doe #1 settles, the Troll could try to amend the complaint to “… v. Doe #2, and Does #3-21,” I think the judge would call BS and stop this game.
This will be interesting to see what the judge and Troll do.
DTD 🙂
I just didn’t want to post any info that could help the troll pig. I had all of the info on Richard Dziklinski, including the TRW part. Now that it’s out there, there isn’t much doubt the pig thinks there’s money to be had. Bottom-feeding scum.
I voted it was a mistake… and I really think it was. You are all giving the trolls way too much credit here. They simply are not smart enough to do something like this intentionally.
They take one word document which is their standard lawsuit document and manage to find a way in nearly every case to mess up the name of the video, the name of the client, the name of the defendant, or they even misspell names when their ass is on the line.
These aren’t the best and the brightest legal minds, these are the bottom feeders in their industry.
So, since the trolls are reading this blog… how does it feel that nearly every day this blog uncovers something stupid mistake you do? Every single day. And we’re not even lawyers. Why do real lawyers think of you clowns?
The thing I think a lot of the “settlers” fail to realize is not all lawyers are created equally. There are some ones who are really terrible at their jobs. You shouldn’t be afraid.
I see your point, but not convinced that it was a pure mistake.
If he filed the same motion simply substituting “Does “1-21” with the [name] in the title, and left the body of the document intact, I would agree that it was likely a mistake. But the crook went through the hassle of modifying the title to “[name] and Does 2-21.” In addition, he added two paragraphs. You cannot do it by mistake or even ignorance: it was deliberate.
Actually, since I agree with the second part of your statement (“These aren’t the best and the brightest legal minds, these are the bottom feeders in their industry.”), I’m trying to think outside the boundaries of a false dilemma: It very well can be both: we deal with “lawyers” who have the following two “virtues” in equal parts: sloppy unprofessionalism and malicious douchbaggery. And such a mixture results in bloopers like this one.
Whatever the reason, I’m kind of happy that we possibly prevented some foul developments by shedding a beam of light in the proper direction. At least I believe in this. Please don’t take this belief from me 🙂
Well, there is always the handy troll excuse that an overworked, underpaid paralegal fucked up which Nicoletti has used in the past. However, I agree with SJD, this was deliberately done as can be easily ascertained by comparing the original with the amended complaint.
It’s a pretty sad choice.
Are the porn purveyor copyright trolls, such as the Lipscomb/Nicoletti group, error-prone, or are they underhanded, or both?
Both (see my comment above).
Everyone. That is the wrong Richard Dziklinski. I came across your sight when my parents had alerted me to their situation. I am not the other Richard Dziklinski and I do not want to give out too much information as to hurt my father’s case but he is a 62 year old man that is happily married and doesn’t have the money they are looking for. He feels accomplished just to be able work his email at a consistent basis let alone download a porn. He could use all the help he can get from anyone as he really doesnt have the funds to obtain a legal counsel. Again, I do not wish to give out too much info but they did try exactly as you said and went after my brother who is the extremely accomplished name and hasn’t lived at that residence in 6 years. If anyone is willing to give helpful advice we are open ears in private conversation.
You can write me (sophisticatedjanedoe@yahoo.com) and explain it in a bit more coherent way (I have hard time understanding the relationships you outlined). I’ll try at least to direct you to lawyers who don’t charge for the phone consultation.
Brandon,
Contact: sophisticatedjanedoe@yahoo.com. She will steer you in the right direction. An attorney consultation is important right now. There are many attorney resources that are available, and she can assist in finding the right people to talk to. Please do not delay. Do some more research on the net so you can get a better idea of exactly what you are dealing with.
Once again, I encourage you to act quickly.
Wow, so the scumbag trolls went after someone else in the family that does not even reside at that residence? Get an attorney that will help your brother counter-sue the low lives. Can this be even legal? Talk to the attorney, and see if you need to notify DA and FBI in your area.